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James Price, Head of Trust and Probate Litigation, together with Rachael Reynolds (Head of Dispute Resolution for Ogier in Cayman) co-chaired the opening day of the Trusts in Litigation conference held at The Hilton, Athens on 14 and 15 February 2019. James was joined at the conference by Matthew Humphries, a partner in our Divorce and Family team, and Emma Holland, a senior associate in our growing Trust and Probate Litigation team.
The conference began with opening remarks from James and Rachael on the success of the inaugural conference last year in Reykjavik and the hope that this year’s topics would stimulate as much open debate. Those comments set the tone for some highly interactive and lively panel sessions, all of which involved a great deal of attendee participation.
The jam-packed morning was followed by two sessions focusing on routes of attack to assets held through offshore trusts (in the context of financial remedy claims in divorce proceedings). This included commentary on the impact of firewall legislation and a discussion on whether the English family courts care about the principles of trust law. This debate made clear the importance for clients of having specialists in both trusts and family law in the increasing number of cases where both disciplines are involved.
Anti-Bartlett clauses were then considered in some detail, in particular the limits of their effectiveness and viable alternatives. This topic was of particular interest due to the recent Hong Kong Court of Appeal decision in Zhang Hong Li v DBS Bank (Hong Kong) Ltd CACV 138&139/2017. There was much discussion on the issues of expert evidence on Jersey law adduced at the trial.
As James observed, you could have heard a pin drop during a fascinating talk on capacity and the high-profile end of life case involving Alfie Evans. This session then moved on to discussion regarding the basis on which Unexplained Wealth Orders (as introduced by the Criminal Finances Act 2017) can be obtained and highlighted the caution that should be given by lawyers in considering whether to receive, or even be granted access to, documents in this jurisdiction.
The truly international nature of trust litigation was demonstrated clearly by the final two sessions of the day.
The first considered the extent to which there is testamentary freedom in England and Wales, and compared equivalent systems in Switzerland and the UAE (and Sharia law). Perhaps surprisingly, the general view appeared to be that such forced heirship systems are not, in fact, so far removed from the UK position taking into account the effect of the Inheritance (Provision for Family and Dependants) Act 1975.
The second session was a jurisdiction-based dating game and saw the Cayman Islands, Jersey and Switzerland battle to win the affections of an offshore trustee who was seeking a good regulatory system, strong enforcement procedures and courts willing and able to assist with trust-associated issues when necessary.
The conference was attended by onshore and offshore private practice lawyers and directors of trustee companies. It was designed to help delegates get to grips with key recent changes and developments that will impact on trust litigation, as well as touch on the areas where trusts interact with other areas, such as civil fraud, insolvency, real estate and matrimonial work.
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